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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs November 17, 2004 FREDERICK D. RICE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County No. 243119 Stephen M. Bevil, Judge

No. E2004-01135-CCA-R3-PC - Filed January 10, 2005

The Appellant, Frederick D. Rice, appeals the judgment of the Hamilton County Criminal Court dismissing his petition for post-conviction relief. On appeal, Rice raises the single issue of whether he was denied the effective assistance of counsel at trial. After review of the record, we affirm the dismissal of the petition. Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE OGLE, JJ., joined. Kevin T. Beck, Chattanooga, Tennessee, for the Appellant, Frederick D. Rice. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Bill Cox, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION Procedural Background In June of 2000, the Appellant was convicted of first degree premeditated murder and first degree felony murder by a Hamilton County jury. The trial court subsequently merged the two convictions and sentenced the Appellant to life in prison. On direct appeal, the Appellant's conviction and sentence were affirmed. State v. Frederick D. Rice, No. E2000-2389-CCA-R3-CD (Tenn. Crim. App. at Knoxville, June 17, 2002), perm. to appeal denied, (Tenn. 2002). The relevant facts, as summarized by this court on direct appeal, established: This case relates to the murder of Anthony Wayne Sims. Debra Fuqua testified that on October 26, 1998, she was walking to a friend's house and saw the victim and the

[Appellant] near the intersection of Curtis and Sherman Streets in Chattanooga. She said that she knew the [Appellant] as "Johnny Boy" and that she had purchased drugs from him in the past. She said that the victim and the [Appellant] were standing behind a gray car and that the victim was showing the [Appellant] something in a black cloth briefcase. She said that the two men were standing face-to-face and "having some words" when the [Appellant] shot the victim in the head. She said that the victim fell from behind the car and that the [Appellant] looked at her and said, "Bitch, you'll be next." She said that when the police arrived, she did not tell them about what she had seen because she was afraid for her life. She said there was no doubt in her mind that the [Appellant] shot the victim. ... Nathan Benford testified that he was a federal prisoner serving a life sentence for conspiracy to distribute crack cocaine. He said that about October 1998, he was being held in the Hamilton County Jail and shared a cell with [the Appellant]. He said that [the Appellant] told him the following: The victim drove a car full of guns to the [the Appellant's] house. [The Appellant] wanted a gun that the victim kept in a black case. [The Appellant] and the victim left in the victim's car and drove a few blocks. [The Appellant] got out of the car and shot the victim in the head. [The Appellant] got the guns out of the victim's car, ran around the corner, and got into a maroon Cadillac with two men inside. [The Appellant] buried the murder weapon in the backyard. Id. In February of 2003, the Appellant filed a pro se petition for post-conviction relief, alleging that he was denied the effective assistance of counsel. Following the appointment of counsel, amended petitions were filed, and an evidentiary hearing was held on October 15, 2003. The postconviction court denied relief by written order of November 3, 2003, and entered an amended order finalizing the denial of the petition on January 22, 2004. This timely appeal followed. Analysis On appeal, the Appellant asserts that trial counsel's representation was deficient because counsel "failed to call an available witness tending to corroborate Appellant's alibi." To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden of establishing the allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann.

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